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Brian Stimson of The Skanner
Published: 07 January 2009

The American Civil Liberties Union of Oregon want police and prosecutors in Portland to stop using a secret list to determine whether a defendant is prosecuted more harshly. A hearing in Judge Dale Koch's courtroom last week questioned the constitutionality of a program that police say successfully gives repeat offenders treatment while also prosecuting them more harshly.
Law enforcement in Multnomah County use a lot of lists. There are those people who are included on the Project 57 list. There are those on the "Frequently Booked Report" from Multnomah County. There are those on gang members and affiliates lists. Even Ashland, Ore. had a secret list of downtown panhandlers they considered "nuisances" which were used to conduct "sweeps."
For the past 5 and a half years, Portland Police have compiled a list of the 35 most-arrested people in a given three month period – part of the Neighborhood Livability Crime Enforcement Program. The list is not based on convictions.
Public Defense Attorneys and Elden Rosenthal, an attorney representing the ACLU, say being on the list directly resulted in upgraded charges for their three defendants, Ronald Terrence Washington, Janet Mary Strachan and Sylvester Brown – two African American males and one Caucasian woman who were charged with felony cocaine charges that are typically charged as misdemeanors.
"Police should not be keeping secret lists that are going to be used to treat them differently in court," he told The Skanner.
Because the list is being kept secret, it is unknown how many African Americans are on it, although Multnomah County Defenders Inc. – who subpoenaed a copy of the list – say African Americans are disproportionately affected. If a similar list kept by Multnomah County Corrections is any indication, African Americans might make up close to 50 percent of the "frequently booked" population.
The 2007 Multnomah County "Frequently Booked Report" reveals those people who had 10 or more bookings that year – 90 percent of arrestees were from Portland Police. The 2008 report has not yet been released.
It is also likely that many of the individuals on the city's secret list are also on the list of Project 57 – a program that fast tracks people arrested for certain crimes into jail beds and treatment programs. A report on the program's effectiveness found that 80 percent of P57 offenders had not had a repeat P57 arrest in 18 months.
"The 45 percent of Repeat Offenders who were arrested three or more times in 18 months — these individuals are well known to Corrections staff as being, for the most part, heavily impacted by drug and alcohol abuse AND suffering from longstanding mental health issues," according to the June 2007 report on Project 57.
Police Spokesperson Sgt. Brian Schmautz says the current system – which finds many people being arrested, released, not given treatment and rearrested for minor crimes – "is broken and has been broken for some time." According to Multnomah County statistics, defendant Washington was booked 11 times in 2007. Five of those bookings were for violating the city's former Drug Free Zones and the other charges were drug related.
With the secret list program, those who are frequently picked up by police for minor crimes in the Downtown, inner Northeast and Southeast, get fast-tracked to treatment and other programs designed to help people with addiction and mental health issues.
"We identify people who have the most repeat offenses," says Schmautz. "and move them to the front of the line because they cost the system the most."
He says most of the secret list arrestees are very grateful for the services they receive. Rosenthal says that is beside the point – the Portland Police shouldn't be keeping secret lists that influence how you're being treated by the prosecutor's office. Rosenthal says that if the list were based on convictions and if a person on the list was given an opportunity to challenge their place on the list, then he wouldn't have such a problem with it.
"We're opposed to police keeping secret lists," he said.
Currently, the only way to get removed from the list is to remain arrest free for three years, according to testimony at last week's court hearing.
And while police say they keep the list secret because they are dealing with arrests, not convictions, and want to protect the innocent, it should be noted that arrests are generally treated as public information – just like the information provided by the Multnomah County Sheriff's Department for their most frequently booked data.
Rosenthal says the case will be in court again in February. It is unclear when a decision by Judge Koch will be made.

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